UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
NIGEL G. GEOHAGEN,
Defendant-Appellant.

No. 99-4530

Appeal from the United States District Court

for the District of South Carolina, at Florence.
C. Weston Houck, District Judge.
(CR-98-399)
Submitted: December 20, 2000
Decided: January 8, 2001
Before LUTTIG, WILLIAMS, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

COUNSEL
John OLeary, OLEARY ASSOCIATES, INC., Columbia, South
Carolina, for Appellant. J. Rene Josey, United States Attorney, Alfred
W. Bethea, Jr., Assistant United States Attorney, Florence, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

UNITED STATES v. GEOHAGEN

OPINION
PER CURIAM:
Nigel Geohagen appeals from a seventy-eight month sentence
imposed following his guilty plea to conspiracy to possess with the
intent to distribute and to distribute powder and crack cocaine, 21
U.S.C.A 846 (West 1999). Finding no reversible error, we affirm.
Geohagen first challenges the district courts jurisdiction under
Apprendi v. New Jersey, 530 U.S. ___, 120 S. Ct. 2348 (2000). Specifically, Geohagen claims that the Governments failure to allege the
drug quantity in his indictment deprived the district court of jurisdiction.
The Supreme Court held in Apprendi that "any fact that increases
the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable doubt."
Apprendi, 120 S. Ct. at 2362-63. In United States v. Angle, 230 F.3d
113 (4th Cir. 2000) (96-4662), petitions for rehearing filed (Oct. 26,
2000), we concluded that if a defendant is sentenced to a term within
the statutory maximum, the conviction and sentence do not violate
Apprendi, notwithstanding the failure to allege a drug quantity in the
indictment. Geohagens sentence falls well within the maximum sentence set forth in 21 U.S.C.A. 841(b)(1)(C) (West 1999). Accordingly, we find no Apprendi violation.
Geohagen next claims that the district court improperly assessed a
four-level increase in his base offense level for his role as an organizer or leader in the conspiracy pursuant to U.S. Sentencing Guidelines Manual 3B1.1(a) (1998). Counsel did not object to this
enhancement, so we review for plain error. Fed. R. Crim. P. 52(b);
United States v. Olano, 507 U.S. 725, 732 (1993); United States v.
Hastings, 134 F.3d 235, 239-40 (4th Cir. 1998). To show plain error,
the defendant must establish that there was an error, the error was
plain, the error affected the defendants substantial rights, and the
error affected the fairness, integrity, or public reputation of the proceeding. Olano, 507 U.S. at 732; Hastings, 134 F.3d at 239-40.

UNITED STATES v. GEOHAGEN

To apply an enhancement for a leadership role in a conspiracy, the

court must find that the defendant "was an organizer or leader of a
criminal activity that involved five or more participants or was otherwise extensive." USSG 3B1.1(a). A defendant who did not lead or
organize the conspiracy may nevertheless be subject to a four-level
adjustment if he "exercised management responsibility over the property, assets, or activities of a criminal organization." USSG 3B1.1,
comment. (n.2). In deciding whether to apply the enhancement, courts
look to such factors as the nature of the defendants participation in
the commission of the offense, whether he recruited accomplices, the
degree of his participation in planning or organizing the offense, and
the nature and scope of the illegal activity. USSG 3B1.1 comment.
(n.4).
Geohagen does not dispute that there were five or more participants
in the conspiracy. He claims, however, that he was simply a low-level
drug courier, rather than a leader of the conspiracy. At the sentencing
hearing, the prosecuting attorney stated that an FBI agent involved in
the investigation said Geohagen was not a controlling member of the
conspiracy, which was based in Miami. Although he was not a high
level participant in the overall conspiracy, Geohagen was actively
involved in the South Carolina branch of the conspiracy. He brought
large quantities of cocaine from Miami to South Carolina on numerous occasions, and sold or fronted the cocaine to other people for
resale. Geohagen was involved in transporting and/or distributing a
total of 9.7 kilograms of cocaine over a two-year period. Although
there was little evidence regarding Geohagens direction of other
members of the conspiracy, there was evidence that the conspiracy
was wide-ranging, and that he was involved with significant quantities of drugs. Thus, the district court did not plainly err in assessing
the four-level adjustment under USSG 3B1.1(a).
Finally, Geohagen claims that he received ineffective assistance of
counsel in the district court because his attorney did not object to the
USSG 3B1.1 sentence enhancement, and because he did not challenge the sufficiency of the indictment. Claims of ineffective assistance are not cognizable on direct appeal unless counsels
ineffectiveness plainly appears on the face of the record. United
States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir. 1991). Because the
record does not clearly show that counsels performance was defi-

UNITED STATES v. GEOHAGEN

cient, this claim is more properly raised in a motion under 28

U.S.C.A. 2255 (West Supp. 2000).
We affirm Geohagens conviction and sentence. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
significantly aid the decisional process.
AFFIRMED